By WILLIAM SAFIRE
New York Times, op-ed
Thursday, November 152001 

WASHINGTON — Misadvised by a frus­trat­ed and pan­ic-strick­en attor­ney gen­er­al, a pres­i­dent of the United States has just assumed what amounts to dic­ta­to­r­i­al pow­er to jail or exe­cute aliens. Intimidated by ter­ror­ists and inflamed by a pas­sion for rough jus­tice, we are let­ting George W. Bush get away with the replace­ment of the American rule of law with mil­i­tary kan­ga­roo courts.

In his infa­mous emer­gency order, Bush admits to dis­miss­ing the prin­ci­ples of law and the rules of evi­dence” that under­gird America’s sys­tem of jus­tice. He seizes the pow­er to cir­cum­vent the courts and set up his own drum­head tri­bunals — pan­els of offi­cers who will sit in judg­ment of non-cit­i­zens who the pres­i­dent need only claim rea­son to believe” are mem­bers of ter­ror­ist organizations.

Not con­tent with his pre­vi­ous deci­sion to per­mit police to eaves­drop on a sus­pec­t’s con­ver­sa­tions with an attor­ney, Bush now strips the alien accused of even the lim­it­ed rights afford­ed by a court-martial.

His kan­ga­roo court can con­ceal evi­dence by cit­ing nation­al secu­ri­ty, make up its own rules, find a defen­dant guilty even if a third of the offi­cers dis­agree, and exe­cute the alien with no review by any civil­ian court.

No longer does the judi­cial branch and an inde­pen­dent jury stand between the gov­ern­ment and the accused. In lieu of those checks and bal­ances cen­tral to our legal sys­tem, non-cit­i­zens face an exec­u­tive that is now inves­ti­ga­tor, pros­e­cu­tor, judge, jury and jail­er or exe­cu­tion­er. In an Orwellian twist, Bush’s order calls this Soviet-style abom­i­na­tion a full and fair trial.”

On what legal meat does this our Caesar feed? One prece­dent the White House cites is a mil­i­tary court after Lincoln’s assas­si­na­tion. (During the Civil War, Lincoln sus­pend­ed habeas cor­pus; does our war on ter­ror require ille­gal impris­on­ment next?) Another is a mil­i­tary court’s hang­ing, approved by the Supreme Court, of German sabo­teurs land­ed by sub­ma­rine in World War II.

Proponents of Bush’s kan­ga­roo court say: Don’t you soft-on-ter­ror, due-process types know there’s a war on? Have you for­got­ten our 5,000 civil­ian dead? In an emer­gency like this, aren’t extra­or­di­nary secu­ri­ty mea­sures need­ed to save cit­i­zens’ lives? If we step on a few toes, we can apol­o­gize to the civ­il lib­er­tar­i­ans later.

Those are the argu­ments of the pho­ny-tough. At a time when even lib­er­als are debat­ing the ethics of tor­ture of sus­pects — weigh­ing the dis­taste for bar­barism against the need to save inno­cent lives — it’s time for con­ser­v­a­tive icon­o­clasts and card-car­ry­ing hard-lin­ers to stand up for American values.

To meet a ter­ror­ist emer­gency, of course some rules should be stretched and new laws passed. An eth­nic drag­net round­ing up visa-skip­pers or ques­tion­ing for­eign stu­dents, if short-term, is bor­der­line tol­er­a­ble. Congress’s new law per­mit­ting war­rant­ed rov­ing wire­taps is understandable.

But let’s get to the tar­get that this blun­der­buss order is intend­ed to hit. Here’s the big wor­ry in Washington now: What do we do if Osama bin Laden gives him­self up? A prop­er tri­al like that Israel afford­ed Adolf Eichmann, it is feared, would give the ter­ror­ist a glob­al pro­pa­gan­da plat­form. Worse, it would be like­ly to result in wide­spread hostage-tak­ing by his fol­low­ers to pro­tect him from the pun­ish­ment he deserves.

The solu­tion is not to cor­rupt our judi­cial tra­di­tion by mak­ing bin Laden the star of a new Star Chamber. The solu­tion is to turn his cave into his crypt. When flee­ing Taliban reveal his where­abouts, our bombers should prompt­ly bid him farewell with 15,000-pound daisy-cut­ters and 5,000-pound rock-penetrators.

But what if he broad­casts his intent to sur­ren­der, and walks toward us under a white flag? It is not in our tra­di­tion to shoot pris­on­ers. Rather, President Bush should now set forth a pol­i­cy of uni­ver­sal sur­ren­der”: all of Al Qaeda or none. Selective sur­ren­der of one or a dozen lead­ers — which would leave cells in Afghanistan and else­where free to fight on — is unac­cept­able. We should con­tin­ue our bom­bard­ment of bin Laden’s hide­outs until he agrees to iden­ti­fy and sur­ren­der his entire ter­ror­ist force.

If he does, our crim­i­nal courts can han­dle them expe­di­tious­ly. If, as more like­ly, the pri­ma­ry ter­ror­ist prefers what he thinks of as mar­tyr­dom, that sui­ci­dal choice would be his — and Americans would have no need of kan­ga­roo courts to betray our prin­ci­ples of justice.